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Is it Fair?

By Eric Eslinger
Program Officer, Educational Technology, Knowles Science Teaching Foundation

January 13, 2014

I recently met a teacher who was doing some really exciting work with multimedia mash-ups as a replacement (or augmentation) for the traditional “term paper” thing that’s so common in classrooms. Given some content assignment, she had students find videos on YouTube, slice and dice those videos into something new, and then record their own narration over the video to present the content they’d been assigned.

By arranging the found footage and adding their own narration, the students did a lot of interesting, creative work. I loved the compelling stories that were told; the neat way of utilizing modern media resources; and the way the summarizing, editing and creating skills they developed all map into more traditional skills that we typically use when creating term papers.

Of course, the question I asked was: “Is this legal?” Can students take existing (copyrighted) material, mash it up, and re-present it in interesting, new ways? Can teachers ask students to do that? The answer is complicated, of course.

DISCLAIMER: I’m not a lawyer. I’m not giving you legal advice. I’ve been told by lawyers that I should say this. So there you go.

The first thing to pay attention to: there’s no real law that says clearly, “this is what you’re allowed to do, and this isn’t.” Instead, the notion of Fair Use of Copyrighted material is the result of court decisions, interpretations, and outright innuendo when it comes to laws. There’s no actual checklist you can go through and say, “Yep, I’m in the clear,” although there are clearly some actions that are worse than others. Unfortunately, knowing that you’ll probably win in court doesn’t make life more fun, because you can still end up getting sued or in trouble otherwise, and this isn’t the kind of court case where you get a free lawyer.

Generally speaking, when considering fair use, the courts take into account four factors:

  • Is your use transformative and not-for-profit? If you’re changing things significantly, especially adding content, and you’re not making money, this is more likely to be deemed fair use.

  • Is the original work factual or creative? A remix of factual information is a lot easier to call fair use than a remix of a song, movie or other creative work.

  • How much of the work are you using, and is it appropriate for your own use? While a parody might borrow the entire music score of a pop song (with new lyrics), you can’t just play that score as the background music for a video you created.

  • Will your work negatively impact the commercial viability of the copyrighted work? For example, releasing a “mashup” of a movie that eliminates the need for people to watch the original movie would be problematic.

Read more on fair use: (http://en.wikipedia.org/wiki/Fair_use)

So, was the mashed-up video something that qualifies as fair use? Again: I’m not a lawyer, so I’m not going to make a judgment here. Is it an example of a really cool lesson that I’d suggest to  teachers? Yes. I can say in an unqualified sense: new media literacy must include skills and practices for remixing and mashing up other media, just as “classic” writing skills involve reading, referencing, borrowing, outlining, organizing, and so on. These same habits of mind translate well into modern digital media, and we ought to be teaching the habits of mind in many settings, not just the classic “write an essay” mode.

But is it fair?

My second argument is that we absolutely must include education for all students as to what counts as fair use and what doesn’t. The notion of ownership and copyright has to infuse our modern media education landscape. A lesson that asks students to remix existing video should have material to support understanding fair use, just as a student’s first introduction to writing a research paper should cover citations and plagiarism.

Here’s a good place to start: http://www.teachingcopyright.org/curriculum/hs. The Electronic Frontier Foundation (EFF) built some open-source lessons for teaching copyright to kids. While the lessons themselves aren’t perfect (I think they’re overly didactic and wildly optimistic in terms of material per lesson), they’re a great foundation for building lessons to teach about fair use to your students. Even better, these lessons are explicitly licensed, so you can remix, re-write, borrow, and re-present the bits you like and build your own lessons to share from them. I’ll write more on the Creative Commons license that the EFF uses in a later post.

But for now: don’t run from digital controversy. Modern media is fascinating and empowering; students have all sorts of new ways to create and re-create digital representations in all kinds of classrooms and out-of-school environments. They should learn about their own rights as creators and the rights other creators; it’s a central part of being a citizen of the internet.


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